land tenure and conflict in rural Ghana

Introduction This paper examines the social inequity and conflict and its link with land tenure, insecurity, conflicting property claims and the unequal distribution of land throughout the rural areas in Ghana. It also looks at various land tenure measures adopted by the various Ghanaian governments in the post-colonial times in providing an improved land tenure security for the poor, marginalized, etc. Land is a very important asset not only for sustaining livelihoods but also for generating wealth. Its significance in most sub-Saharan African countries, including Ghana, where agriculture is the mainstay of the people, cannot be overemphasized. Land serves as a factor of production, generates wealth and supports the livelihoods of all of these nations. It contributes, greatly to the agrarian backbone of most of these economies and constitutes a substantial part of their Gross Domestic Product (GDP) (Toulmin, 2007). Multiple and Competing Claims to Land Land as a livelihood resource attracts many interests from different groups of people. The various interests and stakes in land are intersecting and if not well managed can lead to conflicts. Kunbour (2003) indicates there are multiple land rights and therefore 'multiple land owners' in the Upper West Region with the different groups having different rights to the same parcel of land. There are therefore multiple users and 'owners' of land. Land disputes arise if one party claims the exclusive rights of a piece of land which is shared. To forestall this, governments have tended to encourage the registration and titling of land interests. The FAO (2006) discusses the various interests in land as: Overriding interests: Overriding interests in land normally involves the dispossession of lands by the state for example for the purposes of establishing a forest or game reserve. For example, the Mole Game Reserve in the northern region is taken by Government. Overlapping Interests: When several parties are allocated different rights to the same parcel of land (e.g., one party may have lease rights, another may have a right of way, etc.). This type of interests would generate into unrest if one's land use rights affects the use rights of the other party or where the one party would like to usurp the use rights of the other party. Complementary Interests: This is the commonest form of land administration in rural Ghana. When different parties share the same interest in the same parcel of land. There are complementary rights in grazing grounds, water sources, clay deposits and even wild life. Complementary land interests become conflict situation if a party wants to claim exclusive use of it. Competing Interests: When different parties contest the same interests in the same parcel (e.g., when two parties independently claim rights to exclusive use of a parcel of agricultural land. Land disputes arise from competing claims). This is by far, the major cause of land conflict. The exclusive claim of land use rights by one party dispossesses the other party from the use of it Nature and causes of land conflicts in Ghana Wehrmann (2008) identifies the causes of land conflicts to be political, economic, socioeconomic, socio-cultural, demographic, legal, administrative, technical (land management), ecological and psychological factors. The National Land Policy also outlines the causes of land disputes in Ghana to include multiple land sales, indeterminate boundaries of customary-owned land resulting from lack of reliable maps and plans, conflict of interest between and within land owning-groups and the state (Government of Ghana, 2000). Land disputes within landowning groups are more pronounced in parts of Ghana where families hold lands, and family heads fail to account for land revenue. Ubink and Quan (2008), Tsikata and Yaro (2011) and King and Bugri (2013) have identified that the lowering enthusiasm of chiefs towards transparency and accountability is compounded by the limited statutory compulsion for chiefs to deliver on their mandates. Similarly, intra-family dispute, trespass/boundary dispute and unauthorized disposition of rights in land by chiefs as the commonest causes of land disputes in Ghana, Crook (2005). The nature of land tenure in Ghana itself is blamed for the high level insecurity recorded (Tsikata and Seini, 2004). The complications associated with the land tenure system in Ghana re-emphasizes the need to enhance customary land management with accompanying dispute resolution mechanisms and a means to enhance tenure security. According to Peluso and Lund (2011), the confluence of territorialization, property rights and commoditization of land, contribute to land conflicts and land tenure insecurity. Yaro (2010) attributes land conflicts to increasing commercialization. In his view, lands are increasingly being commercialized in Ghana for both residential and agricultural purposes, which previously were not. He maintains that high levels of insecurity of land tenure are a characterization of customary lands. Under such tenure systems, women and settler farmers are among a variety of groups who suffer from land insecurity and lose when land is commercialized. General framework of land access and tenure security in Ghana Land tenure is defined as a set of rules and regulations that govern the holding, use and transfer of interest and rights in land (Payne, 1997). Land tenure is often categorized into Private, Communal, Open Access and State tenure. • Private: The assignment of rights to a private party who may be an individual, a married couple, a group of people, or a corporate body such as a commercial entity or non-profit organization. For example, within a community, individual families may have exclusive rights to residential parcels, agricultural parcels and certain trees. Other members of the community can be excluded from using these resources without the consent of those who hold the rights. Private land tenure system is common in urban areas and is largely associated with formal land title registrations. LAP is modelled in this form; that is to provide deeds and titles to all lands in the country. • Communal: A right of commons may exist within a community where each member has a right to use independently the holdings of the community. For example, members of a community may have the right to graze cattle on a common pasture or a water body. This is the commonest form of land tenure in rural areas. • Open Access: Specific rights are not assigned to anyone and no-one can be excluded. This typically includes marine tenure where access to the high seas is generally open to anyone; it may include rangelands, forests, etc, where there may be free access to the resources for all. An important difference between open access and communal systems is that under communal system non-members of the community are excluded from using the common areas. • State: Property rights are assigned to some authority in the public sector. For example, in some countries, forest lands may fall under the mandate of the state, whether at a central or decentralized level of government. It is to be noted that there are three legal land regimes that recognized in Ghana comprising the customary, statutory, and common practice. The last category is a hybrid system resulting from both customary and statutory practice. This plural legal regime in Ghana may be attributed to the age-long consolidation of the chief’s and earth priest’s authority on land, long before centralized government became known. Despite the existence of plural systems governing land administration traditional authority and customary rules play the most significant influence in land ownership and use arrangements. This is expected because reliable estimates suggest that around 80% of lands in Ghana are in the custody of customary authorities. Land control has over the years sustained the chieftaincy system in Ghana. From the colonial days to the present, chiefs have openly protested against attempts by successive governments to take control over lands in this country. Thus chiefs control most of the lands up to date, and some have argued that the lack of strong political will by governments to make radical reforms to replace the traditional system are reasons for the pervasive problems confronting land productivity in Ghana today. Customary land tenure and access to land Customary land tenure is characterized by its largely unwritten nature, and is based on local practices and norms, flexible, negotiable and location specific. Its principles stem from rights established through first clearance of land, or conquest. Customary systems are usually managed by a traditional authority such as a chief or a family head (Bentsi-Enchill, 1975). For the majority of the rural populations (and for that matter the majority of Ghanaians), decentralized customary land tenure systems are still the norm, though marked variations exist between north and south of Ghana. Through patrilineal or matrilineal inheritance systems, communities, families and individuals belonging to the land-owning group held the customary rights to land used for settlements, food and cash crop farming, or even rested as fallow lands. Communal rights were, and are still exercised over any grazing land and fishing grounds by community members (Benneh, 1987, Kasanga, 2001). “Traditions” and “customary conventions” are continuously being redefined or reinvented to back conflicting claims of different social groups (Asante, 1975). Changes in demography have diverse causes and effects including urban expansion which severely limits agricultural land, fragmentation of land holdings, commercialization of land, and land alienation by customary authorities. Government acquisitions over the years for infrastructure and conservation purposes including roads, offices, educational facilities, forests, and mineral reserves has also led to land scarcity. The effectiveness of the traditional land tenure system is now being questioned, especially as most of the communal mechanisms - such as broader community consultation, social equity and safety nets that ensured easy access to land and transparency in land administration have been lost. Compulsory acquisition and access to land One form of state intervention in land access has been through legislation such as the compulsory acquisition of land for public interest. Under the State Lands Act, 1962 (Act 125), any family land, stool land, or private land may be acquired where the government considers it to be in the public interest. Some of such lands have been used to build schools, hospitals, roads, and administrative offices for the functioning of the state. As Kotey (2002) observed, the need for the state to acquire lands compulsorily for public purposes is accepted by most people. But he further added, the legal basis of this power, how it has been exercised, and whether compulsory acquisition has taken into consideration the interests of the owners of the land has been a matter of intense argument. During the colonial times the exercise of compulsory acquisition was limited to clearly define public purposes, and the abundance of land as at then did not pose much problems. Following independence, many acquisitions were made, sometimes for purposes which were not obviously public (Kotey, 2002). An example is the case which the state acquired lands at Ofankor in Accra is often mentioned as a sour reflection of government acquisition and what actually constitutes use in the public interest. In theory, access to public land is open to all Ghanaians, on a ‘first come first served’ basis. However, the process of Government land lease preparation has many stages, and can take from 6 months to 10 years or more to complete. Like the case of Ofankor, beneficiaries of state land allocations are mainly senior civil servants, politicians, top army officers, contractors, business executives and the land administrators (Kasanga & Kotey, 2001). The above categories of people, a privileged minority have the means, contacts and power to acquire land on the open market, yet use their influence to acquire lands cheaply from the state. This has led to inequitable distribution of public land to the disadvantage of the low/middle income groups who need it most to survive well. In the same vein during the era of the Operation Feed Yourself Campaign in Ghana, programs were initiated to boost agriculture and extension services, farm credit and inputs, chemical fertilizers, and marketing arrangements were put in place for rural farmers to benefit from. Professionals were encouraged to go into farming, and traditional authorities persuaded to willingly give out land for food production to make the country food self-sufficient. The policy worked in its initial 3 to 5 years, with the country nearing food-sufficiency, but the overall performance was abysmal. High ranking people were the sole beneficiaries of these subsidized inputs, and government agencies, through relevant regional and district authorities, used the principle of compulsory acquisition to acquire lands in rural areas. The lands acquired gave these institutions access to agricultural inputs which instead of being used were resold to poor farmers who had limited opportunities for accessing these subsidized inputs. State land policies have created difficult land access to the majority of rural farmers, and there are grounds for concern that as land becomes scarcer, poorer and more vulnerable groups will see their claims weakened, leading to their increasing marginalization and hardship. Since 2002, the Government of Ghana has through its Poverty Reduction Strategy outlined comprehensive policies, strategies, and programs to support growth and poverty reduction over a three-year period (2002-2004). It is informed by the conviction that making land easily accessible to farmers would enable wealth creation for the benefit of all Ghanaians. Concrete modality of the intervention carried out: measures and mechanisms Statutory land tenure arrangements and security of tenure Statutory land arrangements have influenced significantly tenure security in Ghana. A number of legislation and policies have been made in the past to initiate and improve registration of interest in land in Ghana in the hope that security of land holding. Registration of deeds started in 1843 and was coined into the Land Registry Ordinance of 1895, and repealed in 1962 but re-enacted as the Land Registry Act, 1962 (Act 122). Under this Act, any instrument affecting land could be voluntarily registered so long as it contained a description of the land. The Land Title Registration Law, 1986 (PNDCL 152) was introduced as an effective and better system of land titling and registration. It targeted the problematic land use areas of Accra-Tema and Kumasi prescribing compulsory title registration to address the shortcomings of the deeds registration system. In effect, the land title registration process was to eventually phase-out the Deeds system that existed before it. With compulsory title registration, both individual and communal interests in land can be registered whether on freehold or leasehold. Land registration and security of tenure Land security is an important component in effective land management. Among other things secure rights in land can reduce the incidence of land disputes/conflicts, increase land transactions, provide greater incentives for investment, and enhance the collateral value of land. It can also promote food security and protect the interests of land users with derived rights to land. Land registration has been perceived as a way of increasing land rights. In both registration systems (title or deeds), security of tenure or ownership is ensured which means that, if there are some contest over a piece of land, the first of two registered deeds or titles affecting that same piece of land would prevail. The registration processes in place in the country had made only modest gains due to the weak implementation, over-centralized nature, and the general lack of knowledge among Ghanaians of the possible benefits to be derived from registration. It is important to not that because the large chunk of land under customary tenure arrangements are characterized by a serious lack of documentation, it make it is virtually impossible to estimate plots of land for various developments. This is why the National Land Policy (NLP) prescribed speeding up the registration process through decentralizing deed registers to ensure easy access to land and enhance security of land rights. The land administration program As a follow-up to the NLP, a Land Administration Program (LAP) is currently underway to improve access to land, and ensure certainty of land rights. It also seeks to establish pilot projects in demarcation and registration of allodial boundaries, land titling and registration offices to improve deeds and title registration, and to strengthen customary land secretariats for effective documentation and record keeping of customary land transactions. This process is expected to last well over 15 years but the first five years focuses on selective piloting of these activities before wider replication. The project is divided into four broad components to achieve the stated objectives, and the relevant areas meant to tackle land access and tenure security include the following: • Development of a strategy on land disputes, identifying cause of disputes and alternative methods to resolve land disputes outside the court • Establishment of land courts in regional capitals to expedite resolution and land cases • Revision of laws and regulations for an effective and efficient land administration, including land use planning and valuation • Strengthening customary land secretariats • Strengthening public and private sector land administration and management institutions • Improving Land titling, Registration, Valuation and information systems • Establishment of model land titling and registration offices • Improvement of deeds and title registration, including improving access Institutions involved in improving land access and enhancing land rights A number of state institutions have been charged with implementing various aspects of land management in the country. These include the Lands Commission, the Land Title Registry, The Land Valuation Board, the Survey Department, the Department of Town and Country Planning, and the Office of the Administrator of Stool Lands. In addition, the decentralized District Assemblies and the Traditional Councils do play key roles to complement the proper functioning of these land management agencies. Statutory rules on land tenure are usually based on written laws and regulations, and implemented by state agencies. In addition to managing all government lands in Ghana, the Lands Commission (LC) is the state agency charged with the responsibility of managing all stool/skins lands in the country provided for in the Administration of Lands Act, 1962. The Lands Commission (LC) is responsible for land administration, and its functions are decentralized to Regional Lands Commissions in each of the 10 regions of the country. It is the lead land agency and guides and issues certificates to registered lands, as well as keeps stock of all government lands. Another important institution is the Survey Department (SD) which is charged with providing base maps covering the entire country even though detailed maps cover only some areas of the country. Land registration cannot be done without accurate site plans. In the area of urban and rural land use planning, the Department of Town and Country Planning (DT&CP) prepares the Master Plan, and developments are guided by the plan. The Lands Valuation Board (LVB) assesses the value of land in whatever area. The Office of the Administrator of Stool Lands (OASL) is charged with collecting revenues from stool/skin (and also family) lands. The Land Title Registry (LTR) plays a major role in ensuring security of tenure by issuing titles to land owners. These agencies work together to ensure that land are administered well in the country. Performance of institutions in land management Public sector land management institutions have not performed satisfactorily, as they have not been able to satisfy all groups who use land in one way or the other. A number of constraints confront them, including: • Understaffing, and lack of logistics including basic tools and equipment to work with • Over-centralization: people are not aware of the roles performed by each of the institutions engaged in land registration • Insufficient training and orientation (including management): many are ill-informed of the services the land agencies are expected to provide • Ineffective performance: disjointed work among agencies and inability to make people at the grassroots access their services and benefit from land registration • Lack of transparency and the lack of accountability to its wider constituents • The very cumbersome procedures make their services expensive and time consuming. This makes people unable and reluctant to afford their services. The Survey Department lacks the personnel and logistics to demarcate rural land holdings to facilitate registration and security of tenure. Surveyors use very old and slow technology and must visit the site to physically survey the land. With few surveyors in the system, this kind of technology takes a considerable length of time. There are very few qualified surveyors in the many rural districts to undertake demarcation and preparation of site plans for rural farmers and some of the surveyors also charge some fees to facilitate the registration process for prospective applicants. The few people who make use of such services claim the fees they pay are higher than the officially stipulated transaction fees. Policy/program recommendations To ensure effective execution of the LAP’s objectives, LAP should facilitate and engage civil society in capacity building depending on its competence. Currently, it is pictured that NGOs and other civil society actors would play key roles in outreach and capacity building of communities using participatory techniques. By developing such partnerships with relevant community groups with specific core competences, LAP would strengthen both local and national capacities and ensure ownership and inclusion of disregarded individuals or groups such as women and migrants in local and national land administration reform policies. Create awareness on contemporary developments in the administration of land, for the benefit of the people at the rural areas. The land administration reforms being carried out through the LAP would also create avenues for the dissemination of land-based information to the grassroots. This it can do through the national media as well as through selected NGOs, Community Based Organizations (CBOs). The media is recognized as a potent force to carry land-based information and education to the local level. However, there is need for programs to train media men to build their capacity in this regard. The media training institutions could put their training in sharper perspective or context to raise the level of enthusiasm of media men and women in land issues. The objectives of the new land administration reform can be met if the LAP treats its partners with mutual respect and trust. This means transparency in collaborative activities where major decisions affecting other partners (or stakeholders) must be seen to be arrived at through dialogue and openness. This is important to build trust among various stakeholders in order that commitment and unity of purpose prevails. This is also a necessary condition for stakeholder commitment and involvement in collective action. In the same vein, weaker groups should be supported to play roles that are equal and vital. Conclusion Problems related to access to land after violent conflicts are often immense. The operations of government in the post-conflict period are usually sometimes dysfunctional. Expertise to develop and implement policies is typically limited. Co-ordination within government is often weak. A lack of expertise within government means that partnering with international organizations and NGOs can be critical to the coordinated development and implementation of appropriate strategies to provide access to land by everyone. References Bentsi-Enchil, (1975) “The Traditional Legal Systems of Africa”, In Lawson F.H. (Ed.) Property and Trust, Chapter 2, Section 4, Vol. 6. International Encyclopedia of Comparative Law, The Hague, Pp. 68-101. Benneh, G. (1987) Land Tenure and Agro Forestry Land Use Systems. In Raintree J.B. (Ed) Land Tree and Tenure. Proceedings of an International Workshop on Tenure Issues in Agro Forestry. Land Tenure Centre, Wisconsin Crook, R., 2005. The Role of Traditional Institutions in Political Change and Development. CDD/ODI Policy Brief No. 4, November 2005. FAO, (2006), Land Tenure alternative conflict management, F AO Land Tenure Manual 2. Government of Ghana (2000) Problems of Landlords and Tenant Farmers in Sefwi Wiawso and Juabuso Bia Districts. Report of Committee on Tenant/Settler Farmers. Office of the Administrator of Stool Lands, Accra. Kasanga R.K., and Kotey, N.A., (2001) Land Management in Ghana: Building on Tradition and Modernity, IIED, London. Kotey, N.A (2002) Compulsory Acquisition of Land in Ghana: Does the 1992 Constitution Open New Vistas? In Toulmin, Delville, and Traore (Eds), the Dynamics of Resource Tenure in West Africa. IIED and GRET, London. Pp. 203-214 King, R., Bugri, J.T., 2013. The Gender and Equity Implications of Land-related Investments on Land Access, Labour and Income-generating Opportunities in Northern Ghana. The Case Study of Integrated Tamale Fruit Company. FAO, Rome. Kunbuor, B., (2003) "Multiple layers of Land Rights and 'Multiple Owners': The Case of Land Disputes in the Upper West Region" in Ghana's North, Eds. Franz Kroger and Barbara Meier, Peter Lang GmBH, Germany. Land Registry Act, 1962 (Act 122). Land Title Registration Law, 1986 (PNDCL 152) Peluso, N., Lund, C., 2011. New frontiers of land control: introduction. J. Peasant Stud. 38 (4), 667-681. Toulmin, C., (2007) Securing Land and Property Rights in Sub-Saharan Africa: The Role of Institutions, International Institute of Environment and Development, London. Tsikata, D., Seini, W., 2004. Identities, Inequalities and Disputes in Ghana. Centre for Research on Inequality, Human Security and Ethnicity, Oxford. Working Paper 5 Tsikata, D., Yaro, J., 2011. Land market liberalization and trans-national commercial land deals in Ghana since the 1990s. In: Paper Presented at the International Conference on Global Land Grabbing, Institute of Development Studies, University of Sussex, 6-8 April. Ubink, J.M., Quan, J.F., 2008. How to combine tradition and modernity? Regulating customary land management in Ghana. Land Use Policy 25 (2), 198-213. Wehrmann, B., 2008. “Land Disputes”: a Practical Guide to Dealing with Land Disputes. Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH Eschborn, 2008. 16